Pipeline foes say it's not over yet

Opponents of Kinder Morgan's Northeast Energy Direct natural-gas pipeline felt a wave of relief and vindication after the company announced last week that it is suspending all work on the project.

For over a year, lawyers and activists who have pored over thousands of pages of Kinder Morgan's regulatory filings have argued that New England did not have the demand for the gas the company claimed it did. Last Wednesday, Kinder Morgan acknowledged that it had not secured enough contracts to warrant building the pipeline.

But the project is not dead.

"I think a lot of people need a bit of a break and a bit of a victory, but we've been trying to get out the word that while we celebrate the victory, everyone needs to remain vigilant," said Katy Eiseman, president of the Pipe Line Awareness Network for the Northeast.

The question now is whether Kinder Morgan believes it can find other partners with a slightly different plan.

"They, being the developer, the investor, would not have pulled the plug unless they had a pretty good indication that they were not going to get approval from (the Federal Energy Regulatory Commission), at least as it is currently proposed," said Vincent DeVito, an energy attorney with the firm Bowditch & Dewey who has represented Northeast Energy Solutions in pipeline proceedings.

"There's still a lot of moving parts. It's still only been suspended," he added. "If they're reviewing under the same contracts and they want to propose a similar route on a smaller scale, they could do it under the same (FERC) docket" without starting the entire process over.

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The company has requested that FERC and all state regulatory agencies that are currently reviewing aspects of the project or contracts Kinder Morgan signed to sell its gas take no further action until May 26.

Under many of its contracts, Kinder Morgan must take a 30-day period to negotiate with its partners and try to find a workaround.

"The most likely outcome" of those negotiations will be that the current contracts are scrapped, wrote Columbia Gas of Massachusetts in an April 22 filing with the state's Department of Public Utilities.

But there are potentially far-reaching matters of precedent that still hinge on the pipeline.

PLAN-NE, which represents activists and hundreds of landowners potentially affected by the pipeline, has appealed the Department of Public Utilities' decision to deny it intervenor status in several contract proceedings involving the pipeline.

The result of those appeals could determine who gets to weigh in on new natural-gas contracts and how much they get to say, said Richard Kanoff, a lawyer with Burns & Levinson who represents PLAN-NE.

The DPU also has yet to rule on whether National Grid and Eversource can enter into a controversial new kind of contract with Kinder Morgan.

The deals would allow electric-transmission companies to purchase capacity for gas, which they will never use, to build demand for the pipeline. The companies would then try to sell that gas capacity on a third market to power generators, but if they couldn't break even on the deals, then the losses would be passed on to ratepayers in the form of a tariff.

"In that docket, NED is still very much alive and well," Kanoff said.

"The concern is that Kinder Morgan isn't going to take this off the board -- there's just too much money to be made," he added about the project in general.

And in Maine, the Kinder Morgan pipeline was an early test case for a new law that allows the state itself to purchase gas-pipeline capacity to create guaranteed business and convince companies to build more pipelines into the state.

How that law is implemented could determine the future of pipeline projects throughout the region.

With so many moving parts in play, and an energy market that could be in a completely different place six months from now, opponents of the pipeline will keep a close eye on Kinder Morgan even after the May 26 deadline passes.

Locally, the Dracut Pipeline Awareness Group is also considering shifting its focus toward convincing federal lawmakers to reform the way FERC considers large energy infrastructure projects.

"If the energy policies had been revisited, if the charters and laws on the books been up to the date of 2016, maybe we wouldn't have had to lock horns like this with Kinder Morgan," said Caroline Zuk, the group's leader.

"We still have our eyes and ears open," she added. "Much like the Colonial minutemen in days of old, we sleep with our boots by the bed."

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